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ROMANIAN JOURNAL OF EUROPEAN AFFAIRS Vol. 22, No.

1, June 2022

European Digital Sovereignty: An Analysis of Authority


Delegation
Cosmina Moghior1

Abstract: The European Commission defines the concept of European digital


sovereignty as the capacity to make “autonomous technological choices” and the ambition
to shape rules and standards at the international level. The idea of “digital sovereignty”
responds to the demands of the European public and private sectors to increase the uptake of
indigenous technology. However, neither the official policy and discourses, nor the academic
literature analyse the actors involved and the power distribution within this process. This
article aims to investigate on what is digital sovereignty and who is the “owner” of this new
type of sovereignty and the impact of this rhetoric on European integration. It does that by
engaging the theoretic lenses of principal-agent framework, drawing on the development
path of the European policymaking in the technological area, from the 1980’s until today. The
paper concludes that the heterogenous preferences of the member states create the impetus
to delegate powers to the European Commission. Furthermore, digital sovereignty rhetoric
helps overcome the problems of delegation politics by building coalitions and consensus.

Keywords: European digital sovereignty, principal-agent theory, historical analysis,


EU institutional architecture, digital policy.

1. Introduction
Ursula von der Leyen presented in the “Political Guidelines for the Next
European Commission 2019-2025” the ambition to achieve “technological sovereignty
in some critical technology areas” (2019, p. 14). The “digital sovereignty” policy responds
to the demands of the European public and private sectors for European information
and communication technology (ICT) products to increase the strategic independence
from digital products outside this space. The reliance on non-European critical products,
especially semiconductors, cloud services and secure connectivity, creates concerns of
vulnerability to the security and stability of the bloc. The COVID-19 pandemic abruptly
magnified this phenomenon in the context of a dramatic digitalization of all social and
economic sectors.
The European Commission (hereafter “Commission”) defines the concept of
digital sovereignty as the capacity to make “autonomous technological choices” and the
ambition to shape rules and standards at the international level2. While the political and
economic urgency behind this proposal is well understood, the actual implementation
of the concept in the European context is not immediately obvious. The idea of digital
sovereignty is loaded with such a strong ambition that it is challenging to imagine it
happening at the expense of individual member states’ efforts. Lately, some member
states started national level discussions on digital sovereignty as a main point on the

1
Cosmina Moghior is PhD Candidate at the National University of Political Studies and Public Administration.
E-mail: cosmina.moghior@gmail.com.
2
European Commission and High Representative of the Union for Foreign Affairs and Security Policy, ‘Joint
Communication to the European Parliament, the European Council and the Council: A New EU-US Agenda for Global
Change’ (2020).

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European Digital Sovereignty: An Analysis of Authority Delegation

political agenda. However, they are more an exception than a rule. Therefore, the strategic
discussion on this topic tends to unfold at the macro-level.
The main “owner” and promotor of the concept at the European-level is the
Commission, who introduced the idea in most digital policy pieces in the last years. We
are also witnessing public discourses from member states calling for the Commission
to take action in materializing the objectives of digital sovereignty. In this context,
we can observe instances of delegation of power to the Commission to act on behalf
of the member states. The phenomenon can be best analysed through the lenses of
principal-agent theory, where the member states as sovereign actors delegate the task of
implementing the digital sovereignty policy in Europe to the EU institutions, particularly
the Commission. At the same time, it is important to observe that the member states have
strikingly different levels of digital development and even more divergent perspectives on
the future of Europe in this regard. Therefore, the main question that the article aims to
respond is how did the Commission’s competences and position in digital policy changed
with the adoption of the digital sovereignty rhetoric? A secondary question is to clarify
the motivations of the EU member states to delegate powers to the Commission in the
digital policy area.
The article begins with a brief overview and definition of the concept of digital
sovereignty employed in the rest of the study, followed by a literature review on the
principal-agent theory. The next section covers the main elements of the European
institutional setting, underpinning the main roles and power relations in the multi-
level governance of the process of agenda-setting and policy entrepreneurship3. This
brief presentation will help identify the hierarchical relations of the main actors in
the principal-agent theory. It is essential to understand the historical evolution of the
Commission’s powers and attributions in the digital sector. Hence, the article takes stock
on the origins of the European telecommunications policy in the 1980’s. The next section
provides an analysis of the principal-agent relations drawing on public discourses from
the EU member states and institutions. The final section concludes the article with a
discussion on the delegation politics in the context of European digital sovereignty
rhetoric. The hypothesis is that, in the context of heterogenic preferences among the EU
member states, the concept of digital sovereignty has the role of a “coalition magnet”4,
encouraging further delegation of powers to the Commission.

2. Perspectives on digital sovereignty


There are two major rhetorical trends in the EU regarding the capacity to act
and the type of relations the Union should develop with international counterparts,
respectively “strategic autonomy” and “digital sovereignty”. Both concepts are deliberately
underdefined to allow the creation of coalitions around them and the flexibility to
compromise on essential European policies. Political leaders provide enough information

3
Tom Delreux and Johan Adriaensen, ‘Twenty Years of Principal-Agent Research in EU Politics: How to Cope with
Complexity?’ (2018) 17 European Political Science 258, 268, http://link.springer.com/10.1057/s41304-017-0129-4
(accessed 5 April 2022).
4
Daniel Béland and Robert Henry Cox, ‘Ideas as Coalition Magnets: Coalition Building, Policy Entrepreneurs, and
Power Relations’ (2016) 23 Journal of European Public Policy 428, 2, https://www.tandfonline.com/doi/full/10.1080/135
01763.2015.1115533 (accessed 22 May 2022).

105
Cosmina Moghior

on the two concepts to act as an umbrella for the family of related narratives5.
While strategic autonomy is out of the scope of the present paper, it deserves
a short overview to understand its relation with the concept of digital sovereignty. The
concept was born in a context of unpredictable global environment, where gradual
dealignment from the post-war international institutions is the optimal choice. Strategic
autonomy is about gaining independence and authority over the strategic sectors of the
Union, including digital policy. It is therefore a product of rising competition and a form
of integration to prepare the EU for the new era6.
A definitive distinction between strategic autonomy and digital sovereignty is
not clearly and unanimously researched. While the first includes a palette of domains
of action (industrial policy, operational security, and political), the latter mainly bears a
political weight7. Charles Michel, the President of the European Council, considers the
role of digital sovereignty instrumental in the “greater goal of strategic autonomy” of
achieving “more resilience, more influence, and less dependence” necessary for “more
level playing field and more fairness”8. While strategic autonomy has a wide range of
policy issues on its agenda, digital sovereignty concentrates on increasing the ability to
act in the digital world9. However, the rhetoric framing is the fundamental difference
between the two concepts. While digital sovereignty idealizes the European room for
action and agency, strategic autonomy acknowledges a certain degree of interdependence
and even embraces the international cooperation with its newer “openness” rhetoric10.
Critics underline that strategic autonomy is free from the vices of protectionism and
thorny idealism, while offering at the same time operational tools to protect values and
interests11.
The present study tackles the concept of European digital sovereignty, particularly
for its greater ambiguity and for its philosophical connotation of aiming for achieving
a “European sovereignty”. The study began from the intriguing question of who is the

5
Daniel Lambach and Kai Oppermann, ‘Narratives of Digital Sovereignty in German Political Discourse’ (2022)
Governance, 3, https://onlinelibrary.wiley.com/doi/10.1111/gove.12690 (accessed 23 May 2022).
6
Ulrike Franke and Tara Varma, ‘Independence Play: Europe’s Pursuit of Strategic Autonomy’ (European Council on
Foreign Relations 2019) 3; Scott Lavery and Davide Schmid, ‘European Integration and the New Global Disorder’
(2021) 59 JCMS: Journal of Common Market Studies 1322, 1335, https://onlinelibrary.wiley.com/doi/10.1111/jcms.13184
(accessed 22 May 2022).
7
European Union Agency for Cybersecurity., Cybersecurity Research Directions for EU Digital Strategic Autonomy
(Publications Office 2021) 3, https://data.europa.eu/doi/10.2824/43660 (accessed 22 May 2022).
8
Charles Michel, ‘Digital Sovereignty Is Central to European Strategic Autonomy - Speech by President Charles Michel
at “Masters of Digital 2021” Online Event’ (European Council, 3 February 2021), https://www.consilium.europa.eu/en/
press/press-releases/2021/02/03/speech-by-president-charles-michel-at-the-digitaleurope-masters-of-digital-online-
event/ (accessed 22 May 2022).
9
Maxime Lefebvre, ‘Europe as a Power, European Sovereignty and Strategic Autonomy: A Debate That Is Moving
towards an Assertive Europe’ (Foundation Robert Schuman 2021): 7, https://www.robert-schuman.eu/en/doc/
questions-d-europe/qe-582-en.pdf (accessed 22 May 2022); Luuk Schmitz and Timo Seidl, ‘Protecting, Transforming,
and Projecting the Single Market. Open Strategic Autonomy and Digital Sovereignty in the EU’s Trade and Digital
Policies’ (SocArXiv 2022) preprint, https://osf.io/wjb64 (accessed 14 May 2022); MADIEGA Tambiama, ‘Digital
Sovereignty for Europe’ (European Parliamentary Research Service 2020).
10
Luuk Schmitz, Timo Seidl, Protecting, Transforming, and Projecting the Single Market...
11
Barbara Lippert, Nicolai von Ondarza and Volker Perthes (eds), ‘European Strategic Autonomy. Actors, Issues,
Conflicts of Interests’ [2019] Stiftung Wissenschaft und Politik -SWP- Deutsches Institut für Internationale Politik und
Sicherheit 7; Hannes Werthner, ‘Geopolitics, Digital Sovereignty…What’s in a Word?’ in Hannes Werthner et al. (eds),
Perspectives on Digital Humanism (Springer International Publishing 2022): 247, https://doi.org/10.1007/978-3-030-
86144-5_32 (accessed 6 January 2022).
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European Digital Sovereignty: An Analysis of Authority Delegation

sovereign in “European digital sovereignty”? The remaining of the section provides an


analysis of the European approach on the concept and benchmarking against the U.S. and
Chinese perspectives.
Depending on the perspective, the concept of digital sovereignty can be
interpreted in two ways. The first is the normative understanding concerning the manner
in which the states conduct themselves in relation to technology, against their values and
core principles. The second approach is linked to the traditional principle of sovereignty
translated in terms of capability. In the digital context, this perspective is about governing
and employing material resources in the cyberspace.
Digital sovereignty in normative terms is translated in ideas, and political and
metaphoric understandings. The concept is a discursive tool employed in the geostrategic
competition of technological supremacy. When states are claiming their sovereignty in
the digital space, what they actually imply is the “ability to maintain [their] own model
in competition with others, to achieve both competitiveness and normative principles”12.
The centrepiece of the decade we entered is the competition over the technological model
and the values that should inspire it. In the European context, this battle is held on the
value-driven technology that respects individual rights and freedoms, and the economic
competition13.
Digital sovereignty is about using the digital sphere to project influence at
international level. Currently, there is a geopolitical battle on the digital “model”, largely
disputed between the European Union, the U.S., and China. These three models resulted
from competing views and interests on the role of technology in the interaction between
the state, citizens, and the economy. The essence of the digital geopolitical competition is
the normative interpretation of the triangular relationship.
The EU is defending the technological model grounded in “democratic values,
respect for the rule of law and fundamental rights”14. The Commission pledged to find
a “European way” on setting a balance between the data use and security15. Artificial
Intelligence (AI) plays an important role on EU’s global economic agenda. The greatest
current challenge is the adoption of fundamental rights and values in the opaque processes
of AI applications16.
In contrast, the U.S. keeps a low level of intervention in the technological
development. The American philosophy is to leave the private sector self-regulate and
standardize, and have as minimum government intervention as possible. The cyber-
libertarian and activist John Perry Barlow envisaged a cyberspace as a “world that is
both everywhere and nowhere” and “a civilization of the Mind”17. The rising number of
users and the creation of assets led to the increase of state intervention in the cyberspace,
12
Daniel Innerarity, ‘European Digital Sovereignty’ (Institute of European Democrats 2021): 6.
13
Ibidem: 7.
14
European Commission and High Representative of the Union for Foreign Affairs and Security Policy, ‘Joint
Communication to the European Parliament, the European Council and the Council: The EUs Cybersecurity Strategy
for the Digital Decade’ (2020): 19.
15
European Commission, ‘Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions: A European Strategy for Data’ (2020):
3–4.
16
Council of the European Union, ‘German Presidency Conclusions - The Charter of Fundamental Rights in the
Context of Artificial Intelligence and Digital Change’ (2020): 7–8.
17
John Perry Barlow, ‘A Declaration of the Independence of Cyberspace’ (Electronic Frontier Foundation, 8 February
1996), https://www.eff.org/cyberspace-independence (accessed 22 May 2022).

107
Cosmina Moghior

testified by the Edward Snowden revelations18. The U.S. government keeps a low profile
when it comes to digital regulation, however it actively employs obstructing practices in
the cyberspace.
At the other end of the spectrum, China is a strong supporter of the extension
of classical principles of sovereignty in the digital realm. In the 2010 White Paper, China
declared the assimilation of the Internet within its national sovereignty and asserted
the extension of the national laws in the digital realm19. China’s first principle of digital
sovereignty is the government’s exclusive power over the other governments and over all
non-state entities that operate in their national cyberspace20.
Digital sovereignty can be an extension of the classical idea of sovereignty. The
recognition of the cyberspace as a new operational domain extends the obligations of
the “general principle of sovereignty” to this newly recognized application area21. The
authors of the Tallinn Manual 2.0 argue that “cyber activities occur on territory and
involve objects, or are conducted by persons or entities, over which States may exercise
their sovereign prerogatives”22. Although individuals do not perceive any borders when
they are browsing the Internet, their actions still remain under state jurisdiction. Many
states are currently applying the national law to actions performed in the cyberspace,
particularly in situations when cybercrimes have a “physical” analogy (i.e., identity and
intellectual property theft, financial losses, trafficking, unauthorized access).
The Commission adopted the interpretation of digital sovereignty as control
to justify the basis for its Data Strategy. In this context, the EU institutions are creating
a “resource regime” with regards to data, by developing a regulatory environment
structuring the interactions between the market actors23. Data is at the centre of the
European industrial policy as result of its economic catalysing effects. In this sense, the
Commissions aims to “ensure better access to data and its responsible usage” for the
European enterprises24. The Data Governance Act (DGA) proposal is intertwined with
elements of digital sovereignty in terms of control and as a driver for European global
digital leadership. The document includes elements of controlling the data access and

18
Glenn Greenwald and Ewen MacAskill, ‘NSA Prism Program Taps in to User Data of Apple, Google and Others’ The
Guardian (7 June 2013), https://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data (accessed 22 May
2022).
19
China’s Information Office of the State Council, ‘Full Text: White Paper on the Internet in China’ (China Daily, 8 June
2010), https://www.chinadaily.com.cn/china/2010-06/08/content_9950198.htm (accessed 22 May 2022).
20
Creemers R.J.E.H. (2020), China’s conception of cyber sovereignty: rhetoric and realization. In: Broeders D. & Berg B.
van den (Eds.) Governing Cyberspace: Behavior, Power, and Diplomacy. Digital Technologies and Global Politics, Lanham:
Rowman & Littlefield. 107-142.
21
Alaa Assaf et al., ‘Contesting Sovereignty in Cyberspace’ (2020) 1 International Cybersecurity Law Review: 115, 118,
https://link.springer.com/10.1365/s43439-020-00004-5 (accessed 6 March 2022).
22
Michael N Schmitt and Liis Vihul (eds), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations:
Prepared by the International Groups of Experts at the Invitation of the NATO Cooperative Cyber Defence Centre of
Excellence (2nd edn, Cambridge University Press 2017): 12, http://ebooks.cambridge.org/ref/id/CBO9781316822524
(accessed 6 March 2022).
23
Pascal König, ‘Analyzing EU Data Governance Through the Lens of the Resource Regime Concept’ (2022), https://
www.ssrn.com/abstract=4050804 (accessed 22 May 2022).
24
European Commission and High Representative of the Union for Foreign Affairs and Security Policy, ‘Joint
Communication to the European Parliament, the European Council and the Council: The EUs Cybersecurity Strategy
for the Digital Decade’ (2020): 4.

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European Digital Sovereignty: An Analysis of Authority Delegation

localization25. Apart from the lucrative aspects of exploiting European data, the localisation
provision of the DGA is partially rooted in the Schrems II case. The European Court of
Justice Judgement on this case concluded that the standard data protection clauses where
breached, thus invalidating the EU-US Privacy Shield (“Privacy Shield decision”)26. By
consequence, there is a stronger support in Europe for data localisation and an increasing
impetus for the market uptake of native technology.
The territorial digital sovereignty is also manifested on the topic of cloud
security, where the European member states are demanding immunity to non-EU laws
on issues of data processing and storage. In this regard, cloud security should ensure that
the maintenance, operations of the cloud service and process, and data are located within
the EU27.

3. The principal-agent theory


The intriguing aspect of “European digital sovereignty” is the source that projects
this power. In essence, the principle of sovereignty implies the delegation of authority to
the state, which in turn will control the territory and the assets in the given space. In the
European digital context, the delegation setting is not immediately obvious. There are still
looming questions regarding the identity of the agent and the principal.
The bare-bones model of delegation is the principal-agent theory. Hawkins
defines delegation as “a conditional grant of authority from a principal to an agent that
empowers the latter to act on behalf of the former. This grant is limited in time/scope
and must be revocable by the principal”28. An act can be considered a delegation when
a hierarchical and dyadic relationship is identified. The act of delegation involves the
principal and agent as main actors. Moreover, they are mutually constitutive in the sense
that it is a relational situation where the two actors create each other.
It is also a hierarchical situation because “principals retain the power to cease the
contractual relationship and to undo the delegation of authority to the agent”29. Thus, the
principal has superior ex ante and ex post powers, and the agent acts under and within
the principal’s authority. This relationship is built in a sequence of actions, beginning with
the principal selecting an agent, then the principal drafting the delegation contract and
the agent accepting or rejecting it.
In this context, a conditional grant means that the authority is offered within the
limits of a given mandate and specific discretion limitations. An agent has only a certain
level of freedom in the activities entrusted by the principal. In theory, if the agent does not
comply with the rules set in the mandate, the authority can be rescinded.
Efficiency and specialization are the essential reasons why the principal resorts
to delegation to an agent. Authority delegation also increases the legitimacy of the

25
European Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on European Data
Governance (Data Governance Act)’ (2020): 15.
26
Xavier Tracol, ‘“Schrems II”: The Return of the Privacy Shield’ (2020) 39 Computer Law & Security Review 105484: 5,
https://linkinghub.elsevier.com/retrieve/pii/S0267364920300893 (accessed 15 December 2021).
27
Yann Lechelle, ‘It Is Time to Strengthen Our EU Data Sovereignty - Open Letter to EU Institutions | LinkedIn’
(LinkedIn, 23 March 2021), https://www.linkedin.com/pulse/time-strengthen-our-eu-data-sovereignty-open-letter-
yann-lechelle/ (accessed 7 March 2022).
28
Darren G Hawkins et al. (eds), Delegation and Agency in International Organizations (Cambridge University Press
2006): 7.
29
Tom Delreux and Johan Adriaensen, Twenty Years of Principal-Agent Research....

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Cosmina Moghior

policy. Delegating the task to an independent body will ensure that sensitive policies
are not subject to biased policy-makers. The act of delegation answers to the issue of
policy continuity and consistency. Hawkins et al.30 identified other benefits of delegation,
respectively the ability to manage policy externalities (addresses the coordination and
collaboration dilemmas), collective decision-making facilitation, dispute resolution,
credibility and policy bias.
In the European context, the collective principal consists of separate actors which
have heterogenous preferences, making it difficult to take decisions in certain situations.
As a collective actor, members are likely avoiding gathering their efforts around common
interests and objectives because they are attracted to the option of free-riding31. The main
solution to this problem is investing an agent with agenda-setting powers to reduce the
instability of majority rule.
However, delegation also incurs costs on the principal. The most striking is the
control loss over the agent’s actions. This occurs in situations of conflict of interest (when
the two actors diverge on their policy perspectives or values) and agent’s opportunism
(the agent hides beneficial information). These risks can be mitigated through contractual
controls in the form of incentives (remuneration), opportunities, and sanctions32.
With the adoption of digital sovereignty rhetoric at the European level, the
literature misses a mapping of the main actors and power relations. An obvious question
is who is the sovereign? And which are its objects and assets? The principal-agent theory
combined with the longitudinal analysis of historical institutionalism, provides the right
framework to trace the evolution of the Commission’s powers. Furthermore, by adding
the digital sovereignty rhetoric as independent variable, the analysis could offer the right
tools to trace the change and continuity of the Commission’s powers, respectively an
evolution towards the federalization of the EU33.
Additionally, the principal-agent theory helps with understanding the EU
member states motivations to delegate further powers to supranational institutions.
The main reasons we engage in this article are the transaction costs (informational,
bargaining, and enforcement costs) and credibility of policy commitments (create long-
term commitment to an important piece of legislation)34. In the same vein, the rhetoric of
digital sovereignty is a coalition magnet providing further incentives to delegate powers.
Hence, the concept facilitates compromise on sensitive policy areas.

4. The European institutional setting


There is a complex set of entities involved in the process of projecting digital
sovereignty. Anu Bradford argues that the EU is a regulatory superpower that “shapes the
world according to its own image” and Europeanised the global markets, especially with
the General Data Protection Regulation (GDPR). The EU wants to become a global digital

30
Darren G Hawkins et al. (eds), Delegation and Agency in...
31
Kenneth A Shepsle, Rational Choice Institutionalism (Oxford University Press 2008) 6, http://oxfordhandbooks.com/
view/10.1093/oxfordhb/9780199548460.001.0001/oxfordhb-9780199548460-e-2 (accessed 22 May 2022).
32
Darren G Hawkins et al. (eds), Delegation and Agency in...
33
Maxime Lefebvre, Europe as a Power, European Sovereignty...:6
34
Renaud Dehousse, ‘The Politics of Delegation in the European Union’ in Dominique Ritleng (ed), Independence
and Legitimacy in the Institutional System of the European Union (Oxford University Press 2016): 6, https://oxford.
universitypressscholarship.com/view/10.1093/acprof:oso/9780198769798.001.0001/acprof-9780198769798-chapter-3
(accessed 5 April 2022).

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European Digital Sovereignty: An Analysis of Authority Delegation

leader and largely achieved that objective through regulation and standardization35.
Historically, the Commission argued for a European approach in the technological
sector and asserted its role of policy entrepreneur. The reasons for this tendency are largely
related to the functionalism of the opportunities provided by the supranational setting.
“Digital sovereignty” in the European context should be viewed from the perspective of
shared responsibilities. The source of normative guidance and the capability of projecting
power and influence varies across sub-topics, depending on the impact at the national
level or on the single market. The EU institutions enjoy considerable power on normative
and value-driven issues that have extra-territoriality application, such as the competition
policy or data protection. However, EU member states will have the capability and power
to implement regulations on issues with high political salience, such as the security of the
networks and information systems.
The EU treaties do not include any explicit provisions for the information and
communication technologies. However, the EU institutions have the power to adopt
sectoral and horizontal policies. This power is grounded in Article 114 of the Treaty on
the Functioning of the EU (TFEU) that addresses issues regarding the harmonization of
practices that impact the functioning of the internal market.
The EU’s interdependent and hybrid system of governance presents a set of
intricate legislative decisional layers. The current institutional setting is inherited from
the Treaty of European Union (TEU, signed at Maastricht in 1992), and developed in
the Treaty on the Functioning of the European Union (TFEU, signed at Lisbon in 2007).
The resulting inter-institutional distribution of responsibilities is shared among a handful
of actors, varying between intergovernmental and supranational powers. The EU key
institutions in the digital area are the European Council, the European Union Council,
the European Parliament, and the European Commission.
The European Council and the Commission are highly interdependent and
they mutually influence each other in the agenda-setting phase. It is considered the most
important stage of the legislative train because of the attention given by the agenda-
setters to a salient issue and their influence is projected on the resulting policy36. The
European Council does not have any legislative functions, however the Art. 15(1) of the
TEU provides its authority on defining the “general political directions and priorities” of
the Union.
The European Council must request the Commission to initiate legislative
proposals. Thus, it has informal agenda-setting powers and its influence is translated
in the form and content of the request. The Commission enjoys, under Art. 17(2) of
the TEU, the exclusivity of legislative proposal in the Union. It is the formal agenda-
setter and has the power to draft and influence the subsequent steps of the adoption.
The distribution of responsibilities on agenda setting is subject to the area, varying from
high politics (through the heads of governments in the European Council) to low politics
(through the technical expertise of the Commission)37.
The Commission submits its proposal for discussions in the Council and
35
Anu Bradford, The Brussels Effect (Oxford University Press 2020): 18, https://oxford.universitypressscholarship.com/
view/10.1093/oso/9780190088583.001.0001/oso-9780190088583-chapter-3 (accessed 4 April 2022).
36
David Moloney, ‘Who Sets the Agenda? The Influence of the European Commission and the European Council
in Shaping the EU’s Response to the European Sovereign Debt Crisis’ (2021) 29 Journal of Contemporary European
Studies: 112, https://www.tandfonline.com/doi/full/10.1080/14782804.2020.1823342 (accessed 12 March 2022).
37
Ibidem: 4.

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Cosmina Moghior

Parliament that act as two parliamentary chambers. The co-legislators should adopt the
act based on the ordinary legislative procedure described under Article 294 TFEU. The
Council and Parliament draft their internal positions which are presented in the trialogue
negotiations. The co-legislators must agree on the same text. Thus, the final piece is a sum
of concessions and compromises.

5. The origins of delegation in the EU telecommunications sector


To answer the challenge of navigating the geopolitical competition, the
Commission set the ambition to achieve “technological sovereignty in some critical
technology areas”38. However, from this statement, it seems Brussels is not clear about the
direction it plans. Luckily, the EU can learn from its experience of external competitive
pressures and the development of antitrust policies. The most notable example is the
period of 1980 – 2000 when the European Community was challenged by the Japanese
and U.S. dominating strategies on trade, including technology sectors such as computer,
telecommunications, and semiconductors.
The development of telecommunications policy on the EU agenda coincides with
the process of European integration. With the liberalization of the telecommunications
sector, the Commission experienced an increasing foothold in the institutional setting
through the adoption in the 1980s of the first acts in the area of antitrust policy Terminals
Directive (1988) and the Services Directive39. These two documents are important pieces
in the history of European integration because they mark the beginning of European level
policy in the digital sector and delegation of tasks to the Commission in a traditionally
nationalized area. The digital sector witnessed a succession of iterative and incremental
changes, both in terms of institutional powers and regulatory approaches. The added value
of this historical perspective is tracing the longitudinal evolution of the Commission’s
competences. By tracing the development path of the European integration, the
independent variable of digital sovereignty rhetoric will add another layer of arguments
explaining the policy change.
Historically, telecommunications were a matter of national sovereignty marked
by considerable national monopoly. The member states preferred to maintain the status
quo of the intergovernmental institutional setting and preserve their authority on the
telecommunications discussions. The Post, Telephone and Telegraph Administrations
(PTTs)40 wanted to prevent the inclusion of the telecommunications field on the European
level agenda. Although there were international pressures to liberalize the market (notably
38
'A Union That Strives for More: My Agenda for Europe. Political Guidelines for the Next European Commission
2019-2024' (European Commission 2019): 14, https://ec.europa.eu/info/sites/info/files/political-guidelines-next-
commission_ro.pdf (accessed 12 March 2021).
39
'Commission Directive of 28 June 1990 on Competition in the Markets in Telecommunications Services'
(Official Journal of the European Communities 1990), https://eur-lex.europa.eu/legal-content/EN/TXT/
PDF/?uri=CELEX:31988L0301&from=EN (accessed 22 March 2022).
40
The PTTs were national state-run telecommunication networks and services, managed as natural monopolies. Until
the adoption of the Terminals Directive (1988) and the Services Directive (1990), they have enjoyed exclusive rights over
the supply of telecommunications services. The natural monopoly was motivated on the need to limit the operation
of the public network to a single operator to ensure the continuity and quality of the service. These companies were
often owned by the national telecommunication regulatory entity. Thus, they were managed and regulated by the same
authority. Without surprise, the member states were keen on perpetuating this operating model, until international and
European pressures triggered the liberalization. For more information, see Joseph Goodman, Telecommunications Policy-
Making in the European Union (Edward Elgar Publishing 2006), http://www.elgaronline.com/view/9781843768067.xml
(accessed 12 March 2022).

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European Digital Sovereignty: An Analysis of Authority Delegation

from the U.S.), the European PTTs were keen on maintaining their status quo. PTTs
wanted to minimize the Commission’s action, hence they continued to use until 1980s
the European Conference of Postal and Telecommunications Administrations (CEPT)
as the main forum of “coordination of cross-border European telecommunications
issues”41. The Commission frequently overlapped and contradicted CEPT on their
respective competencies. To counter the member states’ resistance to change, the
Commission developed an epistemic community to mobilise and support its strategies
of institutionalizing the telecommunications on the European agenda. The Commission
sought to expand its policy competence and increase its power and legitimacy in this
sector. However, until the 1980s, the external economic and technological pressures
were mild to incentivize the member states to engage on a policy change track. The
Commission lacked the “policy window” that would escalate the need for a coordinated
approach. This all changed with the escalation of the Japanese and U.S. dominance in
the digital sector and increased pressures to open the telecommunication market42.
With the geopolitical challenge resulted the need to address the scale effects through a
concerted response motivated in the Green Paper on the Development of the Common
Market for Telecommunications Services and Equipment43. This document was the first
“major threshold [event] in the evolution of European telecommunications markets”44.
By setting the telecommunications regulation at the European level, the Commission
was proposing innovative policy in the service of the common interest and changing the
nature of national cooperation.
The appointment in 1977 of Étienne Davignon in the position of European
Commissioner for Industry and Commission and Vice-President marked the beginning
of the change in the European telecommunications policy. Additionally, Davignon’s
appointment was a window of opportunity for raising the issue of telecommunications
at the Community level. His strategy was to transform the Commission into an informal
agenda-setter in the telecom sector, first through the epistemic community45, and then
through policy entrepreneurship46. Confronted with the resistance of the PTTs, he
suggested that the Commission ought to focus on the computer and microelectronics
industries, which would become the backbone of the society a few years later.
Furthermore, the Commission sought to develop a central role in the Research
and Development in Advanced Communications Technologies in Europe (RACE).
While CEPT continued to act as a “damage control” actor (protect national sovereignty
in this sector), the beneficiaries of the RACE program supported the Europeanisation
of this policy domain and consolidated the Commission’s legitimacy. Some argue that
this program was the most important development in the European telecommunications
41
Ibidem: 50.
42
Cosmina Moghior, ‘Fear of Technological Dominance: A Longitudinal Analysis of the European Policy Change’
(Unpublished manuscript, 2022).
43
Commission of the European Communities, ‘Towards a Dynamic European Economy: Green Paper on the
Development of The Common Market for Telecommunications Services and Equipment’ (1987) 3, https://eur-lex.
europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:51987DC0290&from=en.
44
Lawrence Garfinkel, ‘The Transition to Competition in Telecommunication Services’ (1994) 18 Telecommunications
Policy: 427, https://linkinghub.elsevier.com/retrieve/pii/0308596194900116 (accessed 22 May 2022).
45
Volker Schneider, Godefroy Dang-Nguyen and Raymund Wrle, ‘Corporate Actor Networks in European Policy-
Making: Harmonizing Telecommunications Policy’ (1994) 32 JCMS: Journal of Common Market Studies: 473, https://
onlinelibrary.wiley.com/doi/10.1111/j.1468-5965.1994.tb00510.x (accessed 18 March 2022).
46
Joseph Goodman, Telecommunications Policy-Making...

113
Cosmina Moghior

policy, because it was the product of supranational efforts. It established the Commission
as “the leader to which diverse liberalizing interests would rally”47.
The policy window that the Commission needed was the early 1980s Information
Technologies Task Force (ITTF) report on the threat of the U.S. and Japanese dominance
in the digital sector. The issue was framed in terms of Europe’s overdependence on foreign
technology and on the monopolistic behaviour from the third-countries companies. In
other words, it was an issue which called for a concerted response. The Commission
stressed that the required “capacity to meet [the US and Japanese] challenges, and to cope
in a timely manner with the opportunities born out of telecommunications, is outside
the capability of national operators on their own”48. It is argued that the Commission’s
capability to raise this threat marks the beginning of the EU telecommunications policy
and the increase of the European Community impact on the national telecommunication
sectors49.

6. The preference heterogeneity in the EU (digital) context


The EU institutional architecture presents a peculiar political setting that
lacks a unitary principal. The history of European Union construction is the result of a
number of countries that decided to yield parts of their sovereignty in specific domains
to supranational institutions. The EU institutional framework is built on balance and
consensus with the aim of creating order without empowering a hierarchical structure.
Largely, the EU member states kept their foremost position regarding the treaties, while
they have also granted consistent discretionary powers to the executive (the Commission)
and the judicial (CJEU) European bodies.
The unique aspects of the delegation politics in the European context are the
plurality of the principals and their preference heterogeneity50. The discourse on European
digital sovereignty is mainly dominated by French, German and EU institutional policy
makers.
In the Franco-German context, digital sovereignty firstly emerged as a form of
digital security pledge at their Council of Ministers of 7 April 2016. The joint declaration
underlined their priority to promote European digital sovereignty around the capacity to
defend the European networks, strengthen industry and the ability to take autonomous
decisions regarding data security in the context of trade agreements negotiations51.
While in the smaller EU member states the concept of digital sovereignty does
not occupy the priorities on the public agenda, it is considered in the wider debate on
“strategic autonomy”. Mainly, policymakers framed the concept of “digital sovereignty”
in terms of digital capabilities, regulation and policy, and protection of the territorial
(traditional) sovereignty52.

47
Wayne Sandholtz and Alec Stone Sweet (eds), European Integration and Supranational Governance (Oxford University
Press 1998): 150.
48
Commission of the European Communities, ‘Progress Report on the Thinking and Work Done in the Field and Initial
Proposals for an Action Programme. Communication from the Commission to the Council on Telecommunications’
(1984) EU Commission - COM Document, http://aei.pitt.edu/3673/ (accessed 22 May 2022).
49
Volker Schneider, Godefroy Dang-Nguyen and Raymund Wrle, Corporate Actor Networks...
50
Renaud Dehousse, The Politics of Delegation...
51
Conseil franco-allemand de sécurité et de défense, ‘Déclaration Ur Les Questions de Sécurité et de Défense’ (7 April
2016), https://www.diplomatie.gouv.fr/IMG/pdf/_16-04-07_declaration_cfads__cle8eaec8.pdf (accessed 22 May 2022).
52
Seamus Allen, ‘European Sovereignty in the Digital Age’ (Institute of International and European Affairs 2021) 5.

114
European Digital Sovereignty: An Analysis of Authority Delegation

During Germany’s Presidency of the Council of the EU, the 27 ministers


responsible for digital transformation signed the “Berlin Declaration on Digital Society
and Value-Based Digital Government”, underlying that “strengthening Europe’s digital
sovereignty and interoperability” is a value at the foundation of the European Union53.
French President Emmanuel Macron stressed the need for a European solution
to the issue of dependence on US digital giants, arguing for the need for a further
integration of the European Union54. The European digital sovereignty has a strong
political importance, because those who gain power in the digital domain set the type of
life we live in55.
Some member states expressed their concerns regarding the evolutions on
digital sovereignty and strategic autonomy. The D9+ states56 published a Joint Declaration
stressing that “We should leverage our global competitive advantage in these areas to ensure
our technological leadership in the long term while maintaining an open single market,
strengthening global cooperation and the external trade dimension”57. Two months
later, Estonia, Denmark, Finland, and Germany co-signed a letter sent to the European
Commission’s President, Ursula von der Leyen, underlining that digital sovereignty
should be centred around self-determination, jointly with democratic partners, while
building on a strong transatlantic relationship. The letter further mentioned that digital
sovereignty should reduce weaknesses, while avoiding protectionist approaches58.
Through these documents, the EU member states have stated their support for
capacity building, cooperation, openness and regulation. They further specify that these
efforts are aimed at upholding the European values. The link between digitalization and
sovereignty occupies a primary position in the priorities of the most pro-liberal market
countries. The Netherlands is actively supporting the initiatives on competition and
platform regulation59. Estonia, the most aversive European country towards the strategic
autonomy concept, is vocal with regards to regulation on disinformation, cybersecurity,
and digital taxation.
The European Council conclusions in October 2020 asserted that technological

53
German Federal Ministry of the Interior, Building and Community, ‘“Berlin Declaration on Digital Society
and Value-Based Digital Government” Signed’ (Federal Ministry of the Interior and Community, 8 December
2020), http://www.bmi.bund.de/SharedDocs/pressemitteilungen/EN/2020/12/berlin-declaration-digitalization.
html;jsessionid=33D6519AAAA44CCDA9901B840C1C6DA8.1_cid373?nn=9384552 (accessed 22 May 2022).
54
Ryan Browne, ‘France’s Macron Lays out a Vision for European “Digital Sovereignty”’ (CNBC, 8 December 2020),
https://www.cnbc.com/2020/12/08/frances-macron-lays-out-a-vision-for-european-digital-sovereignty.html (accessed
22 May 2022).
55
Luciano Floridi, ‘The Fight for Digital Sovereignty: What It Is, and Why It Matters, Especially for the EU’ (2020) 33
Philosophy & Technology: 369, 377, https://link.springer.com/10.1007/s13347-020-00423-6 (accessed 6 March 2022).
56
D9+ gathers the European countries with the highest ranking in the Annual Digital Economy and Society Index
(DESI), with the objective of promoting and exchanging best practices on digitization. The Joint paper referred in
this article was signed by Belgium, Czech Republic, Denmark, Estonia, Ireland, Luxemburg, the Netherlands, Poland,
Portugal, Spain, and Sweden.
57
‘D9+ Declaration: Leading the Way to Europe´s Digital Decade’ (2021), https://tem.fi/documents/1410877/53440649/
D9%2B+Declaration.pdf/536c1b37-2b93-57d6-1313-bfe943f3c17e?t=1611759617528.
58
Germany, Denmark, Finland, and Estonia, ‘Letter to Commission President Ursula von Der Leyen on Digital
Sovereignty’ (1 March 2021), https://www.politico.eu/wp-content/uploads/2021/03/01/DE-DK-FI-EE-Letter-to-COM-
President-on-Digital-Sovereignty_final.pdf.
59
Foo Yun Chee, ‘Germany, France, Dutch Want More Say over Tech Giants’ Start-up Deals’ Reuters (27 May 2021),
https://www.reuters.com/business/retail-consumer/germany-france-dutch-want-more-say-over-tech-giants-start-up-
deals-2021-05-27/ (accessed 22 May 2022).

115
Cosmina Moghior

sovereignty must be built on a digital single market where the EU has the “ability to define
its own rules, to make autonomous technological choices, and to develop and deploy
strategic digital capacities and infrastructure”. Moreover, the conclusions mentioned
that the European market is open to “all companies complying with the European rules
and standards”. Finally, the document stipulated that technological sovereignty will be
projected at the international level through the “EU tools and regulatory powers” with the
aim of shaping “global rules and standards”60.

7. Conclusions: The politics of delegation in the EU digital context


The emergence of the European digital sovereignty rhetoric and the increased
foothold of digital policy on the Union’s agenda mark a turning point in the evolution
of European integration. The concept fosters coalitions and consensus, while creating
divergences among the member states at the same time. Who is the sovereign? This was
the zeitgeist of the present article. Through the literature review and policy and discourse
analysis, the study offers an alternative perspective. The concept of digital sovereignty is
an idea beyond the traditional Westphalian concept. It is not really about the Leviathan,
subjects, assets, and control. It is rather a discursive act instrumentalized (primarily by
the Commission) to advance bold policy proposals and encourage consensus around
them.
The main objective of the article was to trace the Commission’s competence
evolution in a longitudinal analysis, and to take stock of the impact of the new rhetoric
of digital sovereignty on this process. A secondary objective of the study was to identify
the EU member states’ motivations to delegate the tasks and powers at the supranational
level. The emergence of the digital sovereignty rhetoric highlights two key-aspects of the
delegation politics in the European digital framework. First, the decentralized nature of
the institutional setting in the EU underlines the difficulties created by the absence of
a clear centre of power. The European system features a set of multiple principals that
sometimes present heterogenous preferences. Digital sovereignty is an ambition which
requires strategic thinking and decision-making. The ambiguity of the concept, as well as
the aspiration of the EU member states to achieve the objectives of this rhetoric encourages
coalitions and compromise on sensitive topics. The lack of alignment between the EU
member states is the foremost motivation for delegating this task to an independent
body. In the vein of the principal-agent theory, the former decides to delegate powers to
the latter in situations of difficulty to compromise on vital topics. In this way, the agent,
through its expertise, independence, and access to resources, achieves the set objectives of
digital sovereignty at a reduced transaction cost. Otherwise, unilateral action would have
a considerable increased cost and low efficiency. In other words, the EU stands stronger
together in the context of geopolitical competition.
Second, the relationship developed between the principals will influence the type
of discretion they would apply towards the agent. The member states are aware of their
preference heterogeneity, leading them to fear that the other partners will defect, or will
capture the agent, or the agent itself will display policy drift. These three elements are
the main challenges in the principal-agent theory. Nevertheless, the rhetoric of digital
sovereignty comes to rescue the relation between the two sides of the matrix (principal
and agent), through its consensus building. Having the confidence of a greater objective,

60
European Council, ‘Special Meeting of the European Council (1 and 2 October 2020) – Conclusions’ (2020).

116
European Digital Sovereignty: An Analysis of Authority Delegation

the EU member states decided to delegate the task of achieving it, while ensuring
credibility of policy commitments (create long-term commitment to an important piece
of legislation). On the other hand, the Commission is not depleted of its agency to act at
its own will. Its rational behaviour of seeking to maximize its power is the greatest risk
that the principals (the EU member states) are subjected to.
Nevertheless, the EU member states decided to delegate additional powers as a
result of increasing external pressures from the geopolitical competition. It is a challenge
that they just cannot tackle by themselves and this aspect has two implications. First,
the literature acknowledges the effects of the external pressures on creating divergences
between the EU member states61. One of the many vices of the EU is that it has a difficulty
to foster consensus in contexts of crisis. Second, external pressures incentivise further
European integration, but not in the classic neoliberal vein. However, it takes a neo-
mercantilist or even a protectionist turn, for example through foreign direct investments
control62. The two elements are indicating an integrated strategic approach at the European
level to achieve autonomy and sovereignty. Much of the merits are ascribed to digital
sovereignty giving a new objective for European integration. Its main contributions are,
as mentioned before, the coalition and consensus builder, with such a strong force that it
manages to achieve all this in a context of heterogenous preferences.

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